FEDERAL COURT OF AUSTRALIA

O’Donnell v K & S Freighters Pty Ltd [2015] FCA 573

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The Respondent is to pay the Appellant’s costs as taxed or agreed.

3.    The orders made by the Tribunal on 3 July 2014 in proceeding 2012/3679 be set aside.

4.    Declare that paragraphs 71 and 72 of the Tribunal’s reasons were arrived at in breach of the rules of procedural fairness.

5.    Remit the matter to the Tribunal, freshly constituted, for hearing according to law.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

REASONS FOR JUDGMENT

1. Introduction

1    This is an appeal from the Administrative Appeals Tribunal (‘the Tribunal’) by an injured worker, Mr O’Donnell. He suffered an undisputed shoulder injury during a fall. The central question before the Tribunal was whether that injury had caused a subsequent freezing of his shoulder which, in turn, had aggravated unrelated constitutional degeneration in Mr O’Donnell’s C6/C7 vertebrae causing shooting nerve pain down his arm. The Tribunal did not answer this question. Instead it asked whether the damage to C6/C7 had been caused by the fall. In failing to deal with the case Mr O’Donnell did put and in rejecting one that he did not, the Tribunal denied him procedural fairness.

2    Although there was no dispute about Mr O’Donnell’s symptoms or the circumstances of the accident, the Tribunal also found him to be a poor historian and prone to exaggeration. Since this was not suggested to the Tribunal by the respondent, Mr O’Donnell was denied the opportunity to point out that such findings were immaterial to its deliberations and, if he chose to put the submission, also wrong. This too was a breach of the rules of procedural fairness. Although it had no effect on the result before the Tribunal, on account of it being disconnected from any of the questions the Tribunal asked itself, it has affected Mr O’Donnell’s reputation in an unwarranted (and unnecessary) way which should be corrected.

3    The appeal must, therefore, be allowed with costs. I will also declare the unnecessary credit findings to have been made in breach of the rules of procedural fairness.

2. Facts

4    Mr O’Donnell was born in 1960. He began working for the respondent, K & S Freighters Pty Ltd (‘K & S Freighters’), as a yard hand. His work involved placing tarpaulins on railway wagons to make them ready for rail trips to Western Australia. He also drove some plant equipment including a forklift.

5    K & S Freighters had a depot at Enfield which is in the inner western suburbs of Sydney. Erected on the depot’s premises is a ‘breezeway’, that is, a roofed outdoor passage. At around 9 am on the morning of Thursday 15 October 2009, Mr O’Donnell was crossing the breezeway to see another fork lift driver, a Mr Watson. He had been walking in one direction but then turned to walk in another (presumably in the direction of Mr Watson). At that point he says he kicked a piece of steel reinforcing sticking out of the ground and tripped over, sustaining injuries to his left leg, groin, right shoulder and right wrist.

6    The injuries to the left leg and groin are not material to the issues which arise in this case and attention may, instead, be confined to the injuries to Mr O’Donnell’s shoulder and right wrist.

7    On the day of the accident, Mr O’Donnell consulted his general practitioner, Dr Wong, reporting, inter alia, a shoulder injury. He was sent eventually to see a shoulder surgeon, Dr Duckworth, in February 2010. In March 2010, following an MRI, the shoulder surgeon diagnosed Mr O’Donnell with an acute full thickness tear to his right rotator cuff. He operated on Mr O’Donnell on 18 March 2010 and reported to his general practitioner that a good repair of the torn rotator cuff had been achieved.

8    The subsequent healing of Mr O’Donnell’s rotator cuff took some time as might naturally be expected. During that process of healing, he saw the shoulder surgeon on a number of occasions for follow up consultations in April, June, July and October 2010. In the June consultation he was observed to have a lot of stiffness around the shoulder together with some wasting in the same area. At the July consultation the shoulder surgeon reported that Mr O’Donnell had done well in terms of repair and had ‘no pain’. There was, however, on-going stiffness arising from the surgery and he had developed capsulitis, a painful freezing of the shoulder. There is an apparent inconsistency between the record that there was no pain and the diagnosis of a capsulitis.

9    By September 2010 the shoulder surgeon had concluded that Mr O’Donnell might always have difficulty with overhead use of his arm, heavy lifting and repetitive use of his arm out to the side.

10    In October 2010, following a consultation with Mr O’Donnell, the shoulder surgeon thought that he was doing well and had good function with minimal pain and reasonable strength. He would have been happy for Mr O’Donnell to return to normal duties, at least insofar as his shoulder injury was concerned.

11    Some months then passed until, on 15 February 2011, Mr O’Donnell presented to his general practitioner complaining of neuropathic pain, that is, nerve pain which Mr O’Donnell has described from time to time as a pain shooting down his arm. The general practitioner arranged for a cervical x-ray. He also referred him to a consultant neurologist, Dr Walker, for nerve conduction studies.

12    The neurologist saw Mr O’Donnell, performed nerve conduction studies and suggested that an MRI should be performed. X-rays of 24 March 2011 indicated that:

    there were degenerative changes at C6/C7 with disc narrowing and endplate spurring which were less marked at C5/C6; and

    there were minor osteophyte encroachments on the right exit foramina at these levels.

13    An MRI of 4 October 2011 suggested that the moderate foraminal narrowing at C6/C7 likely irritated the exiting right C7 nerve root and was the likely cause of the neuropathic symptoms.

14    Mr O’Donnell returned to see the shoulder surgeon in July 2011. He considered that Mr O’Donnell’s shoulder would never be 100% and he would have to remain on permanent restricted duties, avoiding a lot of overhead use and heavy lifting. He thought that Mr O’Donnell’s ongoing incapacity was a consequence of the rotator cuff tear and hence was the result of the fall on 15 October 2009.

15    In May 2011, Mr O’Donnell was sent to see an orthopaedic and spinal surgeon, Dr Maxwell. He produced a number of reports over time, during which his views matured. His final view was that Mr O’Donnell had C7 nerve root impingement which would mean that he would have difficulty in laterally rotating his neck to the right. Because of the radicular (i.e. radiating) pain into his arm he would have difficulty working for prolonged hours on a forklift.

16    Mr O’Donnell also saw some other surgeons. One of these was a neurosurgeon, Dr McMaster. The neurosurgeon thought that his symptoms were consistent with right C6/C7 radiculopathy which she attributed to the changes visible in the MRI. After the consultation with Dr McMaster, a Dr Ives performed an epidural steroid injection on 4 April 2012. This apparently gave Mr O’Donnell quite a bit of relief (which was recorded in the clinical notes of the general practitioner). Even so, a full range of movement was not restored in the shoulder.

17    By this stage, it had become accepted on all sides that Mr O’Donnell did, indeed, have radicular pain down his right arm and this was related to an impingement at C6/C7.

18    The issue which now arose between the doctors was whether this resulted from Mr O’Donnell’s fall on the breezeway.

19    Two views contended for the field. In one camp were those medical practitioners who believed that Mr O’Donnell’s difficulties with his C6/C7 vertebrae where the result of ordinary age related degeneration and hence unrelated to the fall. In the other were those who thought that the fall had been responsible for the C6/C7 damage.

20    By the time of the hearing in the Tribunal, the first camp contained the orthopaedic surgeons Dr Maxwell and Dr Stephenson. Dr Maxwell did not think that the cervical damage was related to Mr O’Donnell’s symptoms because:

(i)    he did not report the nerve pain until nearly a year and a half after the fall; and

(ii)    the general practitioner had not detected the lesion until nearly a year and a half afterwards either.

21    The other orthopaedic surgeon, Dr Stephenson, whilst noting there was a history of significant neck injury at the time of the fall, was not of the opinion that there had been an ‘acute cervical spine injury at the time when he injured the right shoulder’. He thought Mr O’Donnell’s symptoms were caused by the degenerative changes noted in the radiology reports.

22    In the other camp was another orthopaedic surgeon, Dr Giblin. In his report of 11 February 2013, Dr Giblin expressed the view that Mr O’Donnell had a soft tissue injury to the cervical spine with referred symptoms to his right wrist, i.e, the radiating pain reported by Mr O’Donnell.

23    Although he would later do so, Dr Giblin did not suggest in his initial written evidence that the operation on the shoulder had caused a seizing up of the neck muscles which may have been the source of strain on his neck and, therefore, the cause of the radiculopathy. No such case was opened before the Tribunal on Mr O’Donnell’s behalf.

24    Dr Giblin’s initial theory had the weakness that it did not explain why Mr O’Donnell had no radiating pain down his arm for almost a year and a half after the fall and it did not explain why his symptoms somewhat abated when he was given an epidural steroid injection.

25    As to the latter Dr Giblin, when challenged at the hearing, thought that the pain might have been caused by transient nerve root irritation and it was this which was relieved by the injection. As to the former, Dr Giblin advanced a slightly different theory in these terms (bearing in mind that Dr Alexander was one of the members of the Tribunal):

‘You are not able to posit a pathological mechanism to account for the symptoms in the neck arising by virtue of the shoulder injury itself, are you? --- Just – yes. Well, it’s an assumption and a clinical observation that when the shoulder is stiff the shoulder girdle complex tends to move as a block as opposed to the individual joints of the shoulder of which there are four, and therefore this block movement tends to put a strain on those muscles which are attached to the shoulder girdle and the cervical spine.

Well, that may be, Doctor, but it doesn’t, does it, indicate more than a correlation as opposed to a causation? --- It’s a clinical observation.

And it might as well have its origins in, as you say, constitutional degenerative pathology in the neck? --- It may.

Dr Alexander: Can I just clarify something. I’m not sure what you have actually said. I mean, are you suggesting that the problems with the shoulder and this movement causes neuropathic pain arising from the neck or does it cause pain and strain on the neck muscles? I’m not clear? --- I think it’s a strain on the neck muscles.

Right. And so if the pain is neuropathic are you suggesting there is a correlation between neuropathic pain that arises from injury or irritation of an exiting nerve, is that association with shoulder problems? --- It is sometimes.

It is sometimes? --- Yes.

But is that part of the 10 per cent or is it not? --- I really don’t know.

All right. Thank you.’

26    Dr Giblin had earlier explained at T41-42 the ten percent figure this way:

‘Ms Fraser: Anyway, Doctor, you have had an opportunity to have a look at an MRI and an MRI report? --- Yes.

Concerning the applicant’s neck? --- Yes.

Are you able to say anything about his neck condition insofar as what you have seen would be likely to produce symptoms independently of any other cause? --- Radiologically he has a minor age-related structural abnormality or degenerative change at C6/7. On its own, you know, middle-aged/later middle-aged man, it’s going to cause very little problem other than an occasional twinge every 18 months or three years or so. It would be relatively inconsequential in the grand scheme of life in an uninjured person.

You are aware, Doctor, that it has been suggested there is a connection between his pain in his neck – are you aware of that suggestion? --- Yes.

And what is your view in light of the matters that I have just told you of? --- It’s my view that his symptoms and his pathology are comparable and consequential. That is to---

Mr Snell: Sorry, I didn’t hear the doctor’s answer. Comparable and ---? ---Consequential.

Consequential? --- The area of abnormality on his MRI scan, albeit minor, does represent an anatomical focus of vulnerability, and in somebody who has a moderate soft tissue injury to their shoulder, especially if it’s persistent, these patients, on average 10 per cent of them have recurrent neck problems secondary to the shoulder impairment.

Dr Alexander: What is the basis for that? What is the pathological basis for that? --- Frankly ---

Or the physiological basis for that? --- Frankly, we don’t really know. It’s just a clinical observation, and we surmise or assume that it’s due to muscle tension and muscle imbalance or whatever, but no one has ever been able to put down histopathology as evidence.’

27    This evidence was rendered in a written submission lodged on Mr Donnell’s behalf in these terms:

‘25.    In Dr Giblin’s view the radiculopathy experienced by the applicant is secondary to his shoulder injury. In Dr Giblin’s opinion the cervical pathology is inconsequential in itself, but presents an anatomical focus of vulnerability. As a matter of clinical observation he says that in about 10% of cases there would be recurrent neck problems secondary to shoulder problems. He opined that this may be because of increased muscle tension and/or altered balance, with the shoulder girdle tending to move as a block, rather than 4 separate joints, putting a strain on the muscles and the cervical spine. In the absence of any shoulder injury the applicant may have felt some discomfort arising from the cervical pathology perhaps once every 12 months or 3 years.’

28    By the end of the hearing there were, therefore, three theories of what was causing Mr O’Donnell’s undisputed symptoms:

Theory One:     The cervical damage which had occurred was degenerative in nature and was not caused by the fall but was constitutional and/or age-related. It was this which was the cause of Mr O’Donnell’s symptoms.

Theory Two:     The cervical damage was caused directly by the fall and was the cause of Mr O’Donnell’s symptoms.

Theory Three:    The changes at C6/C7, whilst age-related, were relatively inconsequential but became significant because the shoulder muscles, following the operation and the fall, moved as a block and placed pressure on the cervical spine.

29    Theory two had the problem that it did not explain why the pain had not started for nearly one and a half years after the fall or why the pain was reduced by a steroid injection unless Dr Giblin’s posited transient nerve root irritation explanation was accepted. Theory three had the problem of not identifying a clear pathology.

30    These then were the choices with which the Tribunal was confronted.

31    What did it decide? It accepted the first theory. It rejected Dr Giblin’s views in the following terms:

‘86.    The Applicant particularly relied on Dr Giblin’s evidence. Dr Giblin considered the Applicant to be permanently unfit to use his right arm for pushing, twisting, load bearing, operating heavy vibrating machinery, or activities at or above shoulder height. That suggested to us that the majority of the limitations identified by Dr Giblin were consistent with the neuropathic problems associated with the Applicant’s neck condition. While no treatment for the right shoulder condition was foreshadowed Dr Giblin noted surgery may be considered for the Applicant’s cervical spine, although in his view it was unnecessary. That suggested to us that, notwithstanding his evidence that it would cause only the occasional twinge, even Dr Giblin regarded the Applicant’s neck as an ongoing condition that may require intervention. The doctor at first sought to explain the significant improvement following the steroid injection as a response to possible transient nerve root irritation. We considered it significant that he was prepared to concede that the resolution of symptoms may provide a pointer to the pathological basis for the Applicant’s complaints. That he thought that about one in 10 patients with a moderate soft tissue injury to the shoulder would have recurrent neck problems does not explain, in our view, the Applicant’s degenerative cervical problems. In any event, we prefer the view of Dr McMaster, the Applicant’s treating neurosurgeon, who made a direct link between the Applicant’s neck condition and his referred pain into his thumb.’

(emphasis added)

32    The principal question on this appeal is whether the emphasised portion involved a rejection of the third argument.

3. The Arguments in this Court

33    Mr O’Donnell advanced three arguments in this Court:

34    (a) The Causation Question: Mr O’Donnell submitted that the Tribunal had failed to deal with the evidence advanced by Dr Giblin at the hearing, that is to say, the third theory advanced above. The passage at [86] set out above either showed that the argument had not been considered at all or it revealed reasons which were inadequate in law for dismissing that argument. For the respondent it was submitted that the argument had been dealt with at [86], especially in light of what had been said during the hearing. Regardless, so it argued, the reasons were more than adequately expressed and it was a mistake to read the reasons of a body such as the Tribunal with an eye attuned to the detection of error, particularly where one of its members was a medical expert.

35    (b) The Fairness Argument: Although the Tribunal accepted that Mr O’Donnell had been injured by his fall and although all parties accepted the existence of his pain, the Tribunal concluded that Mr O’Donnell was a poor historian prone to exaggeration. Mr O’Donnell submitted that this was tantamount to a finding that he was dishonest and that this had not been put to him in cross-examination. He also submitted that the Tribunal had denied him procedural fairness by adopting this view without first hearing from him. For the respondent, it was submitted that the inconsistencies had been put to him and that no breach of the rules of procedural fairness had occurred.

36    (c) The Incapacity Issue: Mr O’Donnell submitted that the consensus of medical opinion before the Tribunal was to the effect that he was incapacitated in various ways. Despite this the Tribunal had made no such finding. The respondent submitted, inter alia, that this did not matter in light of the Tribunal’s conclusion that the claimed ailment did not arise from the fall.

37    It is useful to deal with the issues in the above order.

(a) The Causation Question

38    It is apparent from the emphasised portion of [86] of the Tribunal’s reasons that, with respect, it did not understand the third theory. Dr Giblin did not suggest that the degenerative cervical spine problems were caused by the moderate soft tissue injury. He explicitly accepted that the cervical degeneration was age-related. His evidence was that around 10% of persons who had pre-existing minor cervical damage experienced neck problems after suffering a soft tissue injury to their shoulder. Although not definitive on the issue of pathology, he thought this might occur because of increased strain on the neck caused by the shoulder girdle becoming locked. But he did not suggest that this mechanism caused the cervical damage. His evidence was that it aggravated it.

39    That the Tribunal did not correctly apprehend the theory which was being posited is, I think, demonstrated by the immediately preceding sentence in [86] (set out above). Dr Giblin accepted that there was a pathological basis for Mr O’Donnell’s symptoms, namely, the age-related degeneration of the cervical spine. The fact that he appeared to accept this possible pathological origin and that the temporary resolution effected by the steroid injection was also consistent with this origin was, therefore, not a problem for his theory of what was taking place. To the contrary, the pre-existing pathology was the point of departure for Dr Giblin’s argument. That the Tribunal thought that Dr Giblin’s acceptance of this point was a concession against interest strongly suggests that the misstatement in the second last sentence is not some mere slip or textual error which can be overlooked: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. In making that observation I accept that a court should be slow to conclude that such an error in medical reasoning has occurred where one of its members is a medical practitioner: Telstra Corporation Ltd v Warren [1997] FCA 102 per Tamberlin J. Be that as it may, I am satisfied that just such an error has been made. Nor do I think that the exchanges set out above between Dr Giblin and the Tribunal dispel the error under consideration.

40    Mr O’Donnell’s case on this point was based on direct, albeit late, testimony of Dr Giblin and was fully articulated in his final written submission. It was thus a substantial part of Mr O’Donnell’s case, indeed, it was the final form of Mr O’Donnell’s case in the Tribunal. The Tribunal’s failure to deal with a substantial and clearly articulated argument involved a denial of procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394 [24], 407 [88] and 408 [95] (HC).

41    In this Court much of the focus of Mr O’Donnell’s argument was, perhaps unfortunately, on the idea that the Tribunal had failed to deal with the case he presented because it had failed to apply the principle in Watts v Rake (1960) 108 CLR 158 at 160. That case holds compensable an injury which occurs as a result of an injury acting upon an earlier predisposition. Certainly, Mr O’Donnell’s case was of that kind but that it was so neither advances nor detracts from the underlying point which was that Mr O’Donnell was denied procedural fairness because the essence of the case he was putting was not considered.

42    The appeal must be allowed, the decision of the Tribunal set aside and the matter remitted to the Tribunal to be determined according to law.

(b) The Credibility Issue

43    The Tribunal’s ultimate conclusion was that the symptoms Mr O’Donnell suffered arose from, and only from, the degenerative changes in C6/C7 and were, for all intents and purposes, unrelated to the shoulder injury he suffered as a result of the fall on the breezeway. The Tribunal ultimately did not make explicit findings about what Mr O’Donnell’s symptomology was although it recited the evidence. It did, however, find that Mr O’Donnell was an unreliable witness when it came to reporting his symptoms. At [72] it said this:

‘72.    His description of the incident has evolved over time. Overall we found the Applicant to be a poor historian. This necessarily led us to be somewhat sceptical about the Applicant’s claim that all his work limitations are attributable to his injured shoulder, and, to a lesser extent, his wrist and left leg injury occasioned in the incident. For the reasons discussed below we came to the view that the Applicant was either exaggerating his claim or conflating his ongoing complaints with the symptomatology associated with the incident.’

44    Given that the Tribunal’s reasoning did not descend an identification of Mr O’Donnell’s symptoms and that it ultimately appeared to accept that his symptoms were genuine, it is hard to discern the point of these observations.

45    Mr O’Donnell’s argument is not, however, that any legal error is disclosed in making unnecessary adverse credit findings or even that such a practice might be, as it probably is, unwise. His point is that it was procedurally unfair.

46    The cross-examination of Mr O’Donnell involved many challenges to his recollection of what had occurred and what he had reported to various doctors. So for example, at T21-23 the cross-examiner questioned Mr O’Donnell about the precise circumstances of his fall before exploring inconsistencies between that account and the version subsequently given to some of the doctors. He was then asked these questions:

‘Mr Snell: You got stuck on a piece of steel, let’s not quibble about the exact terminology, but what I’m putting to you is that you didn’t tell your doctors initially that you were flung five or six met res as you’ve told the tribunal here today? --- I don’t remember what I said to him, I don’t ---

But if it had been the case that you’d had this incident where you’re flung five or six metres, presumably, you’d have told the doctors about that in the same way as you’ve told it to us today? --- I do not remember what I said to my doctor at the time but I explained to my doctor exactly how the fall happened as I’ve explained it to you now.’

47    It is tolerably clear from this that the cross-examiner was suggesting to Mr O’Donnell that the accident had not happened in the way that he testified that it had. This became even clearer when this exchange occurred at T26:

‘What I’m suggesting to you is that in fact your description of the incident has become increasingly significant in terms of its violence as time has gone by and as you have recounted it on successive occasions, what do you say to that? --- I have explained it exactly the same way as I’ve explained it here today. Every doctor has had a different opinion on how I did have the fall and as I’ve corrected every doctor up at the time, I was impaled on a bit of steel, I did not trip over the piece of steel.’

48    It is difficult to avoid the conclusion, therefore, that the accuracy of Mr O’Donnell’s account was challenged under cross-examination. The matter is, however, made more complex by the fact that despite the cross-examination the respondent did not ultimately submit to the Tribunal that it should conclude that Mr O’Donnell’s account of his symptoms or the circumstances of the accident should be rejected. Those submissions appear at T88-98. The respondent’s central argument was that the constellation of symptoms from which it accepted that Mr O’Donnell was suffering were caused only by the constitutional degeneration in his spine. Perhaps the clearest exposition of the argument was at T97 when this submission was made:

‘Now, this isn’t a case where the respondent, as it might have done if, for instance, let’s say – it’s obviously not this case – but if there had been evidence of fraud or manufacturing of an injury – say it was established that injury never happened – the employer would be entitled to go back and revoke its acceptance of liability ab initio. This isn’t that case. Here, the respondent accepts its liability to pay compensation under the Act where the particular provisions in issue are properly attracted. That is, the need for medical treatment or the inability to work at the same level, result from the accepted injury. And that’s what we say isn’t demonstrated here. Such incapacities he has does not result from the subject injury.’

49    This tends to suggest that the procedural unfairness was not that Mr O’Donnell was not given the opportunity to respond directly to the suggestion that he was exaggerating his symptoms and the circumstances of the accident – plainly he was. Rather, it emerges from the Tribunal making adverse credit findings about Mr O’Donnell when the respondent did not submit to the Tribunal that it should. Because it was not put to Mr O’Donnell’s representative he was denied, so it seems to me, the possibility of making two submissions:

(a)    to point out to the Tribunal that, given the position adopted by the respondent, it was not necessary to make any such finding; and

(b)    to take issue with the argument on its own terms.

50    I do not think that any submission of either kind could, however, have affected the outcome of the proceeding before the Tribunal in the sense of changing the result. The adverse credit findings made by the Tribunal were disconnected from the final result because they were irrelevant to any part of the Tribunal’s actual reasoning process. This has the consequence that whilst the actions of the Tribunal involved procedural unfairness – adverse credit findings were made which were not sought by the respondent – that procedural unfairness was of no direct relevance.

51    This would ordinarily provide a secure basis for withholding relief. However, the fact is that adverse remarks have been made about Mr O’Donnell’s credit without him being given the opportunity to respond by way of submission. Those findings include statements to the effect that:

    his evidence was ‘problematic’;

    he was a poor historian;

    his description of the incident had evolved over time; and

    he was exaggerating his evidence or conflating his ongoing complaints with the injuries suffered in the accident.

52    Whether this is to be viewed, as Mr O’Donnell submits, as a finding that he was dishonest or, instead, that he was an exaggerator, it cannot be seriously doubted that it was an adverse statement about his character and reputation.

53    It is established in administrative law that reputation is a sufficient interest to attract the rules of procedural fairness and that it can be vindicated by a declaration: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 578 and 597. In Ainsworth itself the Court made a declaration although it did not issue certiorari to quash the Criminal Justice Commission’s conclusions. In this case, I have already concluded that the Tribunal’s decision should be set aside. I would not have set it aside on this ground due to a lack of utility. Despite that, I propose in the circumstances to declare that the Tribunal’s conclusions at [71] and [72] were reached in breach of the rules of procedural fairness.

(c) The Incapacity Issue

54    Mr O’Donnell submitted that there was a considerable amount of medical and other evidence before the Tribunal which tended to prove that he was incapacitated for work. The Tribunal made no finding about this. It was submitted that the Tribunal had failed to provide adequate reasons for concluding that he was not incapacitated.

55    I reject this argument. No question about the adequacy of the reasons arises. The Tribunal concluded that Mr O’Donnell’s difficulties were unrelated to his fall. It had, therefore, no occasion to consider the extent of his incapacity. In that sense, its reasons are adequate.

4. Conclusions

56    In view of the unnecessary adverse credit findings the Tribunal will need to be reconstituted on remitter.

57    I make the following orders:

1.    The appeal be allowed.

2.    The Respondent is to pay the Appellant’s costs as taxed or agreed.

3.    The orders made by the Tribunal on 3 July 2014 in proceeding 2012/3679 be set aside.

4.    Declare that paragraphs 71 and 72 of the Tribunal’s reasons were arrived at in breach of the rules of procedural fairness.

5.    Remit the matter to the Tribunal, freshly constituted, for hearing according to law.

Associate:

Dated:    11 June 2015